Henger v. Smith

PRICE, Chief Justice. This is an appeal from the judgment of the District Court of Dallas County, 14th Judicial District. Haskell Smith, as plaintiff, recovered a judgment against W. C. Henger, d/b/a Henger Construction Company, defendant, in the sum of $28,-000.00, for personal injuries alleged to have been suffered by him as a result of the negligence of defendant. The Texas Employers Assurance Association intervened as a party plaintiff, claiming subrogation to the right of plaintiff Smith to the extent it had paid to Smith workman’s compen — 424 — sation insurance on a policy of workman’s compensation issued in favor ■ of ‘his employer, Westheimer Rigging and Heavy Hauling Company as to its employees, • to the extent of something over $8,500.00. It was provided that recovery of Smith’s should inure to the benefit of said inter-venor to that extent. Haskell Smith will be hereinafter referred to as “Smith”; the Westheimer Rigging & Heavy Hauling Company as “Westheimer”; the Mercantile National Bank of Dallas will be referred to as the “Bank”. Trial was to the court with a jury, submission on special issues, and judgment was rendered on the verdict as above stated. Smith was an employee of West-heimer at all times relevant herein. West-heimer had contracted with the bank to lower certain ‘heavy machinery into the basement of an office building which the bank was having constructed in the city of Dallas. This contract, while by its terms was with Henger, was authorized by the bank, and was to all intents and purposes a contract between the bank and, Westheimer. Prior to the 16th day of January, 1943, the bank had let sundry and various contracts in connection with the erection of this large office building. On thé date as mentioned construction had proceeded to a considerable extent, and there were a great many contracts outstanding for work, labor and material. The plans and specifications for the building were drawn by the bank’s architect. On January 16, 1943, the bank entered into a contract with W. C. Henger, in substance and effect that Henger in consideration of $50,000 would supervise and co-ordinate all of the work and construction in connection with the construction of said building, and would provide a complete and competent job organization as might: be necessary to properly supervise and co-ordinate the construction of said building, so that all other work would be done in accordance with the . plans and specifications of Walter W. Ahlschlager, Architect. This $50,000 compensation was payable $3,000 per month until $42,000 had been paid, and the balance of $8,000 when the building was finished to the satisfaction of the bank. It is provided in the contract that Henger should be referred to publicly and in the contract.as General Contractor, but the use of the term in the contract or publicly should not in any way increase or decrease his obligations, his duties and liabilities as a general supervisor and co-ordinator of the construction of the bank’s building. The contract further recites that the bank had purchased and entered into contracts for the purchase of materials to be used in the building, and numerous construction contracts covering specific work which -had not yet been completely performed, and Henger was to have exclusive control of the supervision and co-ordination of the construction of said building under said contracts and contracts thereafter to be made by the bank. It was provided that the bank expressly reservéd the exclusive right to purchase any and all materials, and to let such additional contracts for the construction of specific parts of the building’ as it desired, in its sole discretion; that Henger should not let any sub-contracts or- purchase any materials except upon the written direction of the bank, and in such event all such contracts and purchases shall be charged to and paid by the bank It provides for renting from Henger a certain hoisting engine; provides that Henger should do -certain carpentry and other construction work with his own employees, but for such expense and payrolls he should be reimbursed, such work to be upon written direction of the bank. Henger further bound himself to -devote approximately two-thirds of his own time-to the performance of this contract. It is further recited: “It is expressly understood and agreed that this contract is •largely one for the personal services of the aforementioned W. C. Henger, and in the event of his death prior to the final completion of the building, the bank shall have the option of terminating this contract.” It is averred ..that Henger under this contract .entered..into the exclusive possession of the building and the premises upon which it was-being erected. Prior to the date of the injury to Smith there had — 425 — been constructed a shaft leading from the first floor into the basement to. a depth of about forty-three feet. The purpose of this shaft was to lower heavy equipment into the basement; that in connection with lowering such heavy equipment and machinery into the basement, - a , distance of about 43 feet, there was a substantial derrick erected over the opening of the shaft. This shaft and the derrick had been erected prior to the time Westheimer started the performance of its contract. Westheimer’s crew, of which Smith was a member, used this shaft on the afternoon of March 12th, 1943, and stopped work about 2:30 P.M. awaiting further materials to be delivered and to be lowered into the shaft. There was testimony when the Westheimer crew quit work on the 12th they covered the opening of the shaft with boards and timbers which were provided, and covered’ this covering with a canvas. The purpose of the canvas was to protect those working in the base-from the inclemency of the weather. Smith and the other members of the West-heimer crew reported for work about 8 o’clock on the morning of March 13th. They were shortly thereafter informed that there would be no work with the shaft until noon. Smith, on the request of his superior, went to the shaft for the purpose of making an inspection to"determine the best way to install a line and to handle and move some heavy equipment after it hád been lowered to 'the basement. He sought to lift up the canvas and peer down in the shaft, when in some way his feet slipped and he went down through a portion of the top of the shaft which had not been covered by boards. He sustained serious and painful injuries. Henger is charged with a number of negligent acts and omissions, each -of which is alleged to be 1 the' proximate cause of Smith’s injuries. -Among the acts 'and omissions so charged are the'following: “Failing to have an adequate protecting banister or railing around such shaft; failing to maintain the premises in question in a reasonably safe -condition; failing to properly inspect the premises in question in order to see that they were maintained in a reasonably safe condition; failing to have the opening of such shaft securely covered with timber over the entire surface of such opening, and failing to warn plaintiff that the canvas tarpaulin covering the shaft was not supported by timbers completely covering, and protecting the open portion of the shaft.” In response to special issues the jury found in substance as follows: That on the occasion in question W. C. Henger failed to have an adequate railing' ar-ound the shaft in question; that such failure was negligence and was a proximate cause of the fall of Smith; that prior to the fall Henger failed to properly inspect the shaft in question, that such failure was negligence and such negligence the proximate cause of the fall’of Smith; that at the time Smith fell the shaft was not securely covered with timbers over the entire surface" of the opening, that it was negligence to fail to have the shaft so securely covered, and such negligence was a proximate cause of the fall of Smith; that the failure to warn Smith that the tarpaulin covering of thé shaft was n'ot supported by timbers securely covéring the entire surface of such 'opening was negligence, and' such negligence was a proximate cause of the fall of Smith. Certain issues of contributory negligence 'were submittéd on behalf of Henger, but all of these were found in favor of Smith. Henger moved for an instructed verdict at the close of the evidence, which was refused by the court, and after the verdict was returned moved for judgment non obstante veredicto. This was overruled, and judgment entered .as aforesaid. This case is a little out of the ordinary in that in most cases involving a construction as larjje and complicated as the one here there is ordinarily a general contractor for the entire work; various portions of the work are -ordinarily performed by sub-contractors, sub-contractors having contracted with the-'general contractor. Here this construction had progressed to a considerable degree through 'contracts for ' portions of the work of construction let by the bank, the owner, to various contractors. — 426 — The bank on the 16th day of January, 1943, made and entered into a contract with Henger whereby Henger was to co-ordinate the work and supervise the construction for the bank. The bank had, at the time of its contract with Henger, a great number of contracts for material and construction. These parties having these contractual relations with the bank were, it is presumed, independent contractors. There was no evidence that any considerable number of same were employees of the bank. Any duty Henger had as to this construction and as to the employees of independent contractors engaged therein arose by virtue of his contract with the bank. As to these independent contractors the bank had no power to direct the manner in which their work was performed. It did have the right to the result which they had agreed to achieve; it had the right to supervise and inspect their work, to determine that the contractor conformed to the contract. While on the premises the bank owed to such contractor and his employees the duty of ordinary care as to the safety of the premises upon which they had come by the implied invitation extended by the contract. It was not its duty to warn such independent contractors or their servants of open and obvious dangers existing on the premises, or of such dangers of which they had notice. Ray v. St. Louis, Southwestern R. Co., Tex.Civ.App., 289 S.W. 1030, Wr. Ref.; Hailey v. Missouri, K. & T. R. Co., Tex.Civ.App., 70 S.W.2d 249, Wr. Ref.; Holt v. Texas-New Mexico Pipe Line Co., 5 Cir., 145 F.2d 862; Union Tank & Supply Co., v. Kelley, 5 Cir., 167 F.2d 811; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374. It was not its duty to warn them or protect them from dangers incident to the use of the premises of which such contractors and their employees had notice, actual or constructive. The duty to use ordinary care to warn and protect applied to hidden, latent dangers, which were known or should have been known in the exercise of ordinary care, to the bank, and of which the employees of the independent contractor were unaware. Cunningham v. International R. Co., 51 Tex. 503, 32 Am.Rep. 632; Ray v. St. Louis Southwestern R. Co., supra; 57 C.J.S., Master and Servant, § 606, pages 377-379. Neither the bank nor any one deriving authority from the bank had the right to control or direct the acts of the employees of the independent contractors. The relationship between it and the servants of the independent contractors was not that of master and servant — it did not owe the duty of a master to a servant. It was not responsible for the negligent acts or omissions of independent contractors engaged in the work of construction. If, in the exercise of ordinary care, it became aware of a dangerous condition existing by virtue of the negligence of an independent contractor, it was perhaps under the duty of taking steps after such notice to warn the other independent contractors and their servants of the existence of the danger. It may be that Henger, under his contract with the bank and his action under the same, had the same duty toward the independent contractors and their employees as the bank. In disposing of this case we shall so assume. However, there is this substantial distinction between the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517. There the defendant assumed actual charge and through its employees actually ran and operated the elevators. Here Henger did not. It is of no importance to determine whether the bank remained liable after the contract with Henger — the bank is not a party to this suit. Henger, under the contract, was entirely free as to the manner in which he co-ordinated and supervised the construction of the building under contracts let and to be let by the bank. Henger had no choice as to who came upon the premises to construct same. When he came upon the premises the contractors there who had come there under preexisting contracts were not there at his instance, and were not sub-contractors under him — at least they had no contracts with Henger. Under the contract between Henger and the bank, Henger had no power to let contracts without the special authorization of the bank. Subject to — 427 — the contract and by the terms thereof the bank reserved the power to make all contracts necessary to the completion of the building. Under the contract, as far as is relevant here, Henger had neither power nor duty to do anything but co-ordinate and supervise; under written direction of the bank he was bound to do certain construction work. He had no coercive power over the other contractors lawfully on the premises. If they failed to conform to their contracts he had no power to refuse or withhold their pay. All he had a right to do was to report their defaults to his principal, the contractee bank. He had neither the power nor the duty to exclude such contractors from the work and properly perform their agreement. He was not paid to do this. Smith clearly was not an invitee of Henger. He was on the premises as an invitee of the bank. There is, however, some evidence that Hengfer and employees took over the possession of the premises under and by virtue of the contract with the bank; that under his construction and the construction of the bank he agreed with the bank to discharge the duty of the bank in connection with the safety of the contractors and their employees on the premises in pursuance of their contracts with the bank. If such was the action of the parties under the contract, it is thought that Henger would be liable for failure to use ordinary care to discharge such duty as the bank owed to the contractors and their employees on the premises under and by virtue of their various contracts with the bank. Fox v. Dallas Hotel Co. supra. However, it must at all times be borne in mind that Smith was not an invitee of Henger. For some time prior to the date of the injury Smith had used this shaft. He had been an employee of another contractor that made use of the shaft immediately prior to its use by Westheimer, was in every way familiar therewith, familiar with the mode of covering same and protecting same with a tarpaulin after it was covered; aware, according to his own testimony that frequently after the shaft had been covered with timbers and the tarpaulin, that others would use same and cover it with the tarpaulin and not cover the top entirely with timbers. The following testimony of Smith indicates his knowledge that at times the canvas covering the top of the shaft was not supported by boards covering same. “A. This tarpaulin was laying on the middle timbers and the wind was blowing against it and flopping up and down and you couldn’t see these 2 by 10’s on the outside because it was stretched over there and sagged and tied to the legs of the derrick, and there was no way to see how the timber was under that tarpaulin. “Q. Look at Exhibit 1 and point out to the jury where the 2 by 10’s would have been had they been there. A. They would have been on the toe of this angle which is sticking in here. The 2 by 10’s covered this 20 inches of space in here. I was standing here and looked over this way, and I reached over to get that and the corner of that was tied to that leg there. No way to determine that except to get down on my knees, and I don’t make a practice of that in this iron work. There was some pebbles or gravel there— I don’t know yet how I got in the hole. * * * “Q. Was there any difference in the way this shaft appeared to you on the morning of March 13th from the way it appeared to you when it was properly covered by your men ? * * * A. This tarp looked as it had at any time during the time we had put it there, and I had seen it many times. * * “Q. The portion of the hole through which you fell is this west end, is that correct-southwest end? A. That is right.” And from cross-examination: “Q. On which side of the derrick were you? A. I was on the southwest corner, against the building. “Q. Let’s see if we can show the jury just where you were here on one of these exhibits; I will let you find the one you can show it best in. A. This one right here. “Q. Will you take the pencil and hold it up so the jury can see and you show them where you were standing. A. I was — 428 — standing right here,' jurymen; right against this door facing, right in1 there. “Q. In other words, the braces were on the side that you were standing on? A. That is right. “Q. Those X-braces you see here in plaintiffs Exhibit I? A. That is right. “Q. All right. Is this the angle iron that sticks up six inches there? A. That is right. “Q. Were your toes against that? A. Yes, sir. ..When I turned around — now, then, this is the action I went through * .* *. I testified I turned around and started to pick up this canvass to look under it, to see how to put a block down this hole, and gravel was under my feet and my legs were -against this here, and why I .went in the hole I don’t know to this day. “Q. 'That is what I understood you to say. Let’s see where your body was. Did you crawl under' these braces and get inside this angle iron, or, did you stand outside the angle iron and braces? A. I stood straight up. This angle iron hit me across this way. Take this here, for instance, this angle iron run down here and hit me right here. I was leaning over like this, and had my arm hanging on that brac'e right there. I had my hand on this brace right up here, and I leaned over to get hold of this canvass here. When I leaned to get hold of the canvas.?, my feet went cut from under me, and that is all there is to it. "Q. In order to do that, you had to go through these braces? A. That is right. “Q. And outside’of this angle iron ? A. That is right. “Q. And you had to lean through the braces? A. That is right. ' “Q. Did you lean -through this space, or under it? A. I leaned -through that space. ■ Naturally I would; had something to lean against. “Q. And you reached over with what hand to pull up the tarpaulin ? A. Right hand. “Q. And you don’t know how you slipped in the hole? A. My feet went out from under me. and -that is exactly how I went in; only way I could have done it. "Q. You know the hole was there ? A. Yes, sir; but I didn’t know what was under -that canvas.?; supposed to be some boards there, that weren’t there. The only reason I fell in the hole, there wasn’t anything to catch to.” The ’ following testimony of Smith’s indicates his knowledge that at times the Canvas covering the top of the shaft was not supported by boards covering the same: “Q. Nov/, Mr. Smith, I was asking you about those other sub-contractors and their employees that used that hole at nights. They, of course, had to remove the timbers and. tarpaulin from the hole in order to use it, didn’t they? A. Yes, sir, “Q. And they did that frequently? A. That is right. “Q. Both day and night? A. Yes, sir, that is right — at night. “Q. It' wasn’t anything unusual for you to come up and find the barricade out of' place, was it? A. That is right. "Q. .You frequently came on the job and found the timbers were removed? A. That is’right. “Q. And sometimes one of them would be out of the way and moved, and sometimes others; is that right? A. That is right. “Q. And you have found as many as three or four of the timbers moved and out of place -when you would go there in the morning ? . A. After we would -take the tarpaulin off, yes, sir. - “Q. One particular morning you found that the timbers had been -removed and the steam fitters had put a boiler down through there ? ■ A. A small drum, yes sir; four by four, or something like that. “Q. And you found the timbers moved out of place and the tarpaulin out of place when you got there the next morning? A. That is right. - “Q. As a matter of fact, on that particular occasion, they had moved all the timbers but one, hadn’t they? A. I think so. * * * — 429 — “Q. When Westheimer was through with the use of the shaft in the evening, state whether or not the shaft was covered? A. The shaft was covered, as far as I know, yes, sir. That was supposed to be the last thing we did in the evening, was cover this hole up thoroughly before we left there. “Q. On March 12th, the day prior to your injuries, do you know whether or not the shaft was covered? A. Directly, 1 wouldn’t say, because I never went around the hole to look to see, but it has always been a policy to cover the hole up— “Mr. Touchstone: We object. “The Court: I sustain the objection. “Q. I will ask you whether or not the men in your crew, or you, made it a practice to cover the hole prior to their leaving in the evening? A. The men in our gang, yes, sir. “Q. In so covering the hole, Mr. Smith, what timbers were used? A. The big timbers were shoved out over the hole to cover the part they would, and the little ones fit in there securely at each side, 2 by 10’s or 2 by 12’s, or what have you. “Q. Did they completely cover the hole so as to prevent a man from falling through it? A. Yes, sir. * * * “Q. But whenever you quit, whether four-thirty or five or six or six-thirty, then you had been instructed by Pete Billings to cover that hole properly? A. That hole was covered properly every evening when we left there. “Q. I didn’t ask that. Weren’t you instructed to do that by Pete Billings, their foreman? A. The whole gang' was instructed, not just me. Every man was instructed to cover that hole safely before we left that job. “Q. That is the instruction Pete Billings gave you? A. Gave every one of us. “Q. And you did cover it every day when you finished your job? A. Yes, sir, that’s right. That is one particular job we saw was done. * * The Westheimer crew, of which Smith was a member, ceased work at 2:30 P.M. on March 12th, 1943. Of course,''incidental to the work they uncovered the' shaft in question. There is the testimony of one member of the crew that upon ceasing work, before the canvas was tied over the top of the shaft the top was securely covered-with timbers and boards as contemplated. Smith, a member of the crew, had no personal knowledge that same was so covered. That inference that the top of the shaft was' uncovered between 2:30 P.M. on the 12th and 8:30 A.M. of the 13th of March must rest on the testimony of this witness and the fact that it was not so covered at 8:30 A.M. on the 13th. Beyond any question there were others on the premises that had the opportunity to so uncover the shaft. However, the evidence utterly fails to show that any one had any occasion to make use of the shaft between 2:30 PtM. of the 12th and 8:30 A.M. on the 13th. If the shaft was securely covered by WesLheimer at 2:30 P.M. on the 12th, when .and by whom it was uncovered rests entirely on surmise and conjecture. During such period of time there is a total lack of evidence that any use was made of the shaft; that the covering or any part thereof was in any manner tampered with. Of course, if the shaft was securely covered by Westheimer at 2:30 P.M. on the 12th, some one removed the boards. If this be true, the question then remains, by whom was this done, and .when? The answer to neither of these questions can be deduced from the evidence.- The, question can only be answered by surmise and conjecture. A reasonable answer must arise from the evidence to support either the finding of negligence or proximate cause. Among the findings of the jury of negligence are the following: Failure to have an adequate railing around the-shaft; failure to have the shaft securely covered; failure to warn Smith that the shaft was uncovered. As to each of these -grounds of negligence there is a finding of proximate cause in favor of Smith. . It was also found that there was negligence on the part of Henger in -his failure to. inspect. It seems too obvious to merit discussion that the failure to have a guard rail — 430 — could not by any stretch of the imagination have either been negligence as to Smith or the proximate cause of his injury. Smith knew of the existence of the shaft, and so far as he was concerned required no warning thereof. Smith v. Humphreyville, 47 Tex.Civ.App. 140, 104 S.W. 495, Wr.Den. It was found that the failure to have the shaft securely covered was negligence. The contract between Henger and the bank created no duty on the part of Henger to do any part of the work of the other contractors. There was no evidence that Hen-ger caused the shaft to be uncovered. The covering of the shaft and leaving same reasonably safe was the duty of the contractors using the shaft in the legitimate discharge of their contracts. If Henger did not have notice that a portion of the top of the shaft was only covered by the canvas there could be no duty to warn of such condition. True he might be negligent in failing to ascertain this. Furthermore, Henger, so far as the evidence establishes, had no reason to know that Smith was going to make use of the shaft at the time and in the manner he was attempting to use same when he was hurt. In a case such as we have here, without knowledge or notice there is no duty to warn. Here Henger had no notice of the condition of the shaft; was without notice that Smith would make use of the same prior to 12 o’clock on the 13th. There is no evidence that the exercise of ordinary care in making an inspection would have prevented the accident. The jury found that Henger failed to properly inspect the shaft in question before Smith’s injury, and that such was negligence, and was a proximate cause of Smith’s injury. They also found that failure to warn Smith that the tarpaulin covering the shaft was not supported by timbers was negligence and was a proximate cause of the fall of Smith. However, no point is made that the findings are conflicting. If this judgment is justified it must be from the finding of negligence in failing to inspect. There inheres in the breach of duty to inspect the idea of voluntary ignorance of the situation or condition where there is duty to acquire knowledge thereof for the protection of others. In order that the failure to conform to the duty of inspection to constitute actionable negligence, such omission of duty must be the proximate cause of the damage complained of. If we are to take the theory of Smith at its full value that at the time his employer Westheimer ceased to work the opening of the shaft was securely covered, an inspection at that time would not have prevented the injury of Smith. There is no evidence that with the knowledge and consent of Henger or his employees the shaft was used prior to the injury to Smith. The best time to have made an inspection of the shaft as to whether same was securely covered would have been just before Smith sought to peer down same for a purpose, according to his testimony, incidental to his employment with Westheimer. The evidence is lacking that either Henger or his employees had any notice that Smith or any of the employees of Westheimer would make any use of the shaft prior to 12 o’clock M. on the 13th. Smith had a better opportunity to inspect the covering of the shaft before using same for the reason he knew he was going to so use the shaft and Henger did not. Furthermore, the use of the shaft by Westheimer and his employees entailed the necessity of uncovering same. In doing this work Smith would have been subject to -exactly the same danger he was in peering under the canvas. According to his own testimony he knew the presence of the tarpaulin was no guarantee that the top of the shaft was covered by boards. Henger had no reason to believe that Smith would make any use of the premises prior to 12 o’clock on the 13th. It is very clear from the evidence that Smith’s action was unusual, at an unusual time, and that he was charged with the same notice as to the necessity of an inspection as was Hen-ger. He knew he was was going to attempt to peer down this shaft at the time he did so attempt, and Henger did not have this notice. The verdict acquitted Smith of contributory negligence. It was specifically found that Smith was not guilty of negligence in — 431 — attempting to raise the tarpaulin and look under it without first ascertaining if the timbers were in place. Had he known the exact condition that existed it was not necessarily negligence to raise the tarpaulin and look down the shaft. Smith himself was unable to clearly state just how he happened to fall down the shaft. He did not intend to get on the covering of the top of the shaft. From day to day, in the performance of his duty for Westheimer and his previous employer he was near this uncovered shaft. He had no doubt assisted in removing the canvas or saw it removed. The covering of the shaft was not primarily for the protection of those using the shaft to lower machinery and material into the basement. These persons knew of the existence of the shaft, knew of the danger attendant on its use. The use of the shaft as contemplated necessitated the uncovering of same. Their work necessitated their presence near the uncovered shaft. It must have been the covering of the shaft was primarily for the protection of those whose work called upon them to be around and near the shaft when same was not in use. When in use the use made gave notice of the existence of the unprotected shaft. When not in use the barriers and canvas gave notice of its existence. If ordinary care called for an inspection of the shaft in question before same was used, Smith had as much knowledge of this necessity as Henger. Smith had a better opportunity to make such inspection because he knew that he was going to peer down the shaft at the time he did, and so far as the evidence goes, Henger was without this information. If there was loose dirt near the edge of the shaft this condition was obvious to Smith; it was obvious that the canvas concealed the boards. As has been stated, the use of the shaft contemplated that Smith and his co-employees should remove the covering from the top of the shaft. The only protection they would be afforded by the board covering of the shaft would be during the time they were engaged in removing the canvas. In the opinion of the majority the evidence fails to show negligence on the part of defendant Henger in failing to inspect this shaft; failure to show this because if there was the necessity of inspection Smith knew of this necessity and had a better opportunity to make same than Henger. Had a better opportunity in that he knew when he was going to peer down the shaft and Henger did not have notice of his intention to do so. If he desired to inspect the shaft there was a stairway leading down to the basement available. A contractee does not owe the duty to the employee of an independent contractor to warn him of obvious dangers on the premises, does not owe the duty to warn him of dangers of which such employee is aware or in the exercise of ordinary care should be aware, and of which he is as well aware as the contractee. Bennett v. Louisville & N. R. Co., 102 U.S. 577, 26 L.Ed. 235; Procter v. San Antonio St. R. Co., 26 Tex.Civ.App. 148, 62 S.W. 938, W.R.; Galveston, H. & H. R. Co. v. McLain, Tex.Civ.App., 218 S.W. 65, Wr.Ref.; Beeville Cotton Oil Co. v. Sells, Tex.Civ.App., 84 S.W.2d 575; Texas & P. R. Co. v. Howell, Tex.Civ.App., 117 S.W.2d 857; Fort Worth & D. C. R. Co. v. Hambright, Tex.Civ.App., 130 S.W.2d 436, Dis., Correct Judg.; Blaugrund v. Paulk, Tex.Civ.App., 203 S.W.2d 947, N.R.E.; Houston Nat. Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; 38 Am.Jur. p. 757-758, par. 97; 57 C.J.S., Master and Servant, § 600, page 373. Further, it is the opinion of the majority that if the conclusion that there is no evidence tending to show negligence on the part of Henger in failing to inspect the premises, there is likewise no evidence to show that such failure to inspect was the proximate cause of plaintiff’s injuries. If the shaft was properly covered at 2:30 P. M. on the 12th there is no evidence to show when it was uncovered. There is lacking evidence that Henger knew of the condition of the shaft or in the exercise of ordinary care should have known of same. Justice McGill prepared the original opinion for the court reversing and rendering this case. However, he is now of the opinion that the motion for rehearing — 432 — should be 'granted and the case affirmed. In view of the fact that there was an inadvertent inaccurate statement as to the testimony in .the original opinion, the same is withdrawn and the above and foregoing is substituted therefor. It is therefore ordered that appellee’s motions for rehearing herein be in all things overruled.- It is further ordered, in view of the change and withdrawal of the original opinion, that appellees be granted the customary time in which to file another motion for rehearing.